Citation Nr: 0735146
Decision Date: 11/07/07 Archive Date: 11/26/07
DOCKET NO. 04-19 982 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Roanoke, Virginia
THE ISSUE
Entitlement to service connection for a urinary tract
condition.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
L. L. Mollan, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1975 to April
1979. The veteran also served in the United States Naval
Reserve upon discharge from active duty.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2003 RO decision, which denied
the veteran's application to reopen a claim for service
connection for a urinary tract condition. This issue was
reopened and remanded in a November 2005 Board decision.
In August 2004, a Travel Board hearing was held before the
undersigned Veterans Law Judge at the Roanoke, Virginia RO.
A transcript of that proceeding has been associated with the
claims folder.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required.
REMAND
In the November 2005 remand, the Board ordered that an
appropriate Veterans Claims Assistance Act of 2000 (VCAA)
letter be sent to the veteran in connection with his claim of
entitlement to service connection for an urinary tract
condition, consistent with the requirements of 38 U.S.C.A. §
5103(a), 38 C.F.R. § 3.159(b)(1) and Quartuccio v. Principi,
16 Vet. App. 183 (2002).
Under the VCAA, when VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and his representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002
& Supp. 2006); 38 C.F.R. § 3.159(b) (2007); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi,
18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United
States Court of Appeals for Veterans Claims (Court) held that
VA must inform the claimant of any information and evidence
not of record (1) that is necessary to substantiate the
claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) request that the
claimant provide any evidence in his possession that pertains
to the claim.
A December 13, 2005, letter was sent to the veteran.
However, this letter was inadequate in that it did not meet
the above requirements. The Board is obligated by law to
ensure that the RO complies with its directives; where the
remand orders of the Board are not complied with, the Board
errs as a matter of law when it fails to ensure compliance.
Stegall v. West, 11 Vet. App. 268 (1998). Therefore, in
light of the fact that the veteran was not given adequate
VCAA notice, as directed in the November 2005 remand, the
Board finds that the remand directives have not been
substantially complied with, and that a new remand is
required to comply with the holding of Stegall.
Accordingly, the case is REMANDED for the following action:
1. Provide the veteran with appropriate
notice of VA's duties to notify and to
assist, particularly in compliance with
Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).
2. Then, the RO/AMC should readjudicate
the claim. In particular, the RO
should review all the evidence that was
submitted since the May 2007
Supplemental Statement of the Case
(SSOC). In the event that the claim is
not resolved to the satisfaction of the
veteran, he should be provided a SSOC,
which includes a summary of additional
evidence submitted, any additional
applicable laws and regulations, and
the reasons for the decision. After
the veteran has been given the
applicable time to submit additional
argument, the claim should be returned
to the Board for further review.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the Court for additional development or other appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
_________________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).